1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Award flexibility
(AM2014/300)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER LEE MELBOURNE, 13 DECEMBER 2016
4 yearly review of modern awards – common issue – award flexibility – time off instead of
payment for overtime – TOIL at overtime rate – award specific issues.
1. Introduction
[1] A model term for providing time off instead of payment for overtime (TOIL) was
determined in a decision of 8 July 20161 (the July 2016 model TOIL term) as part of the
4 yearly review of modern awards (the Review). A subsequent decision of 11 July 20162
varied awards which provided for overtime but did not give employees the option of taking
time off instead of payment for working overtime and a number of award terms that provided
TOIL at ‘ordinary rates’, that is, an hour off for an hour of overtime worked. A further
decision on 31 August 20163 dealt with TOIL provisions in another 13 awards including those
in the Maritime industry and Resources sector. After the 31 August 2016 decision, only 29 of
the 113 modern awards which make provision for paid overtime remained outstanding.
2. TOIL at overtime rates
[2] Twenty-one of the remaining 29 awards (listed in Attachment A) currently provide for
TOIL at ‘overtime rates’, that is, they provide an equivalent amount of time off as would have
been paid, e.g. an hour of work at time and a half entitles an employee to one and a half
hours’ off. A statement issued on 5 September 20164 (the 5 September 2016 Statement)
outlined how the Full Bench would deal with these awards, as well as the 8 awards that were
the subject of award-specific submissions during an earlier consultation process.
[3] In the decision of 6 October 2015,5 the Full Bench determined that employees who are
covered by awards that provide TOIL at ordinary rates should be afforded additional
safeguards to protect them from any pressures arising from the ‘financial incentive’ that
employers may have to encourage an employee to take TOIL rather than payment for
overtime worked.6 That decision went on to observe that the same level of safeguards are not
necessary in awards where TOIL is calculated by reference to the overtime rate, as there is
less financial incentive for employers to enter into a TOIL arrangement.7
[2016] FWCFB 7737
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 7737
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[4] In the 5 September 2016 Statement we expressed the provisional view that the July
2016 model TOIL term should be modified in respect of those awards that currently provide
for TOIL at ‘overtime rates’, to remove the requirement in the model term for a TOIL
agreement to be ‘in writing’. Accordingly the modified term (the model overtime rates TOIL
term) makes the following changes to the July 2016 model TOIL term:
(i) deletes the words ‘in writing’ in respect to the requirement ‘that an employer
and employer may agree to the employee taking time off …’ (paragraph T.T(a));
(ii) deletes the requirement that each amount of overtime requires a separate
written agreement (paragraph T.T(b));
(iii) deletes the details of the content of the separate written agreement (paragraph
T.T(c));
(iv) modifies the way that time off is accrued to be in accordance with the penalty
applying to the time worked (paragraph T.T(d) and Example);
(v) deletes the requirement that the written agreement must be kept as an
employee record (paragraph T.T(h));
(vi) deletes the requirement that a separate written agreement applies to requests to
take time off under s.65 of the Act; and
(vii) does not insert the Schedule containing the template agreement.
[5] The modified term (the model overtime rates TOIL term) is at Attachment B.
Attachment C outlines the changes made to the July 2016 model TOIL term as outlined above.
[6] In their submission of 23 April 2015 the Textile, Clothing and Footwear Union of
Australia submitted that the requirement that an agreement to take TOIL must be in writing is
an important safeguard in their industry8. In order to retain such a safeguard, the requirement
for an agreement to be ‘in writing’ as outlined in paragraph [4] at (i) will be preserved in the
awards that currently provide such a condition9.
[7] Draft determinations inserting the modified TOIL term were prepared and published
for comment on 15 September 2016. In those drafts, the TOIL term retained the words ‘may
agree in writing´ in awards which currently require that any agreement to take TOIL must be
made in writing. It should be noted that while the agreement must be in writing, the detailed
requirements at items (ii), (iii), (v), (vi) and (vii) listed in paragraph [4] have not been
included in those draft determinations.
[8] Three of the 21 awards in Attachment A were listed for conference on 12 September
2016 to confirm whether or not the existing award term provides that TOIL is to be taken at
the overtime rate. The awards are:
Award ID Award title TOIL clause
MA000049 Airport Employees Award 2010 30.8
MA000088 Electrical Power Industry Award 2010 26.3
MA000008 Horse and Greyhound Training Award 2010 22.3
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000008/ma000008-27.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000008/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000088/ma000088-31.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000088/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000049/ma000049-35.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000049/default.htm
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[9] Following the conference, a further statement was issued on 14 September 201610 (the
14 September Statement). We now turn to each of these three awards.
Airport Employees Award 2010
[10] No submissions were made at the conference in relation to the Airport Employees
Award 2010. In accordance with the 14 September Statement consideration of the TOIL term
in this award (clause 30.8) will be deferred until the Award stage of the review and will
include a plain language re-write of the current clause, which appears to be unnecessarily
complex.11
Electrical Power Industry Award 2010
[11] At the conference the interested parties made submissions on whether or not time off
in the Electrical Power Industry Award 2010 is provided for at the overtime rate. Clause 26.3
of the award provides:
‘26.3 Time off instead of overtime payment
Where overtime is worked and payment is due in the terms of this clause, time off
may be granted instead of payment on the following basis:
(a) One day off may be substituted for a portion of the payment due with the balance
of the payment being made in money where:
(i) at least a full day of overtime is worked on a Saturday or Sunday by a day
worker; or
(ii) at least a full shift of overtime is worked on a rostered day off by a
shiftworker, or where a shiftworker works a double shift in the absence of the
incoming shift relief.
(b) A maximum of 10 such days off will be granted in any year. The year period for
the granting of the maximum of 10 days will be the leave year for each employee. The
taking of time is subject to operational requirements.
(c) The granting of such time off will not be used as a basis to increase the number of
employees located at any establishment.’
[12] The Construction, Forestry, Mining and Energy Union submitted that the arrangement
under clause 26.3 means that TOIL is to be taken at the overtime rate rather than on an hour
for hour basis. That view was not opposed at the conference.12 A draft determination
replacing clause 26.3 in its entirety with the model overtime rates TOIL term was published
on 26 September 2016. The draft determination removes the restrictions in the current award
term as to when TOIL is available. The interested parties were given the opportunity to
comment on the draft determination. No submissions were received opposing the insertion of
the model overtime rates TOIL term and the determination (corrected for minor typographical
errors) will now be issued.
Horse and Greyhound Training Award 2010
[13] The Australian Workers’ Union (AWU) made submissions at the conference regarding
the Horse and Greyhound Training Award 2010. A provisional view was expressed that
[2016] FWCFB 7737
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clause 22.3 of that award provides that TOIL is to be taken at the overtime rate.13 A draft
determination was published on 26 September 2016 replacing clause 22.3 with the model
overtime rates TOIL term. No submissions were received opposing the draft determination
and a variation determination will be issued in those terms.
Remaining awards
[14] Draft determinations to vary the remaining 18 awards providing for TOIL at overtime
rates listed in Attachment A were published on 15 September 2016 and interested persons
were provided with four weeks to comment.
[15] Apart from three submissions received identifying minor errors with a cross-reference,
no submissions were received opposing the insertion of the model overtime rates TOIL term
in these awards. The typographical issues have been addressed and we will now issue the
determinations in final form.
3. Award-specific submissions
3.1 General
[16] In directions issued on 6 October 2015, interested persons were given an opportunity
to make submissions on why a particular award should not be varied to include a model TOIL
term. Submissions in relation to 8 awards were received and the awards were listed for
conference on 12 September 2016. The 8 awards are:
Broadcasting and Recorded Entertainment Award 2010
Clerks—Private Sector Award 2010
Horticulture Award 2010
Journalists and Published Media Award 2010
Live Performance Award 2010
Medical Practitioners Award 2010
Pastoral Award 2010
Social, Community, Home Care and Disability Services Award 2010
[17] Further statements and directions were issued on 14 September 201614 and
26 September 2016 (the 26 September Statement).15
[18] As stated in the 14 September Statement, the insertion of the model TOIL term in the
Live Performance Award 2010 will be referred to the Award stage of the Review.
[19] In accordance with the process set out in the 14 September Statement, draft
determinations for the four awards below were published for comment on 26 September 2016
and interested persons were provided an opportunity to make submissions by 19 October
2016:
Broadcasting and Recorded Entertainment Award 2010
Clerks—Private Sector Award 2010
Medical Practitioners Award 2010
Social, Community, Home Care and Disability Services Award 2010
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[20] No submissions were received opposing the draft determinations in respect of the
Clerks—Private Sector Award 2010; the Medical Practitioners Award 2010 and the Social,
Community, Home Care and Disability Services Award 2010.16 Variation determinations in
respect of these three awards will now be issued in final form.
[21] Two submissions were received in response to the draft determination in respect of the
Broadcasting and Recorded Entertainment Award 2010. The Media, Entertainment and Arts
Alliance (MEAA) supported the draft determination as published. The Television Networks
(Seven Network Operations; Nine Network Proprietary Limited and Network Ten Proprietary
Limited) were not opposed to a variation determination being made but made one suggested
amendment to item 6 of the draft determination.
[22] Clause 52.3 of the Broadcasting and Recorded Entertainment Award 2010 which
applies to journalists, currently provides as follows:
‘52.3 Daily overtime will be compensated for in the following manner.
(a) Up to and including the first hour of overtime will either be given as time off
instead of payment, at the rate of time and a half, within the following fortnight or
paid for at the rate of time and a half, at the discretion of the employer.
(b) Overtime in excess of one hour will be paid for at the rate of time and a half for the
first hour and double time after that.
(c) An employee may, by mutual agreement with their employer, opt to take overtime
as time off instead of payment at the rate of single time within the next 12 months.
Such agreement will be recorded in writing.
(d) Any time allowed off duty instead of overtime will be deemed to be ordinary hours
for the day or days on which the time off instead is taken.
(e) When an employee is not given the days or nights off duty as provided for in
clause 45—Hours of work the employee will be paid at the rate of double time for all
work done on any such day or days with a minimum payment for four hours.’
[23] The draft determination proposed the deletion of clause 52.3(a) and of the words “in
excess of one hour” appearing in clause 52.3(b). The resulting provision would be:
‘52.3 Daily overtime will be compensated for in the following manner.
(a) Up to and including the first hour of overtime will either be given as time off
instead of payment, at the rate of time and a half, within the following fortnight or
paid for at the rate of time and a half, at the discretion of the employer.
(b) (a) Overtime in excess of one hour will be paid for at the rate of time and a half for
the first hour and double time after that.
…
[24] The above change was opposed by the Television Networks who submitted that:
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000091/ma000091-53.htm#P1189_110304
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000091/ma000091-53.htm#P1189_110304
[2016] FWCFB 7737
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‘ …clause 52.3(b) provides Overtime in excess of one hour will be paid for at the rate of time
and a half for the first hour and double time after that. The combination of 'in excess of one
hour' and 'for the first hour' mean that double time only applies after two hours — not one.’
[25] Accordingly they seek that the words 'first hour' be replaced with 'first two hours' to
preserve the existing entitlement by amending item 6 of the draft determination as follows:
‘6. By deleting the words “in excess of one hour” appearing in clause 52.3(b), by
changing the words ‘first hour’ with ‘first two hours’ and renumbering clause 52.3(b) as clause
52.3(a).’
[26] If the Television Networks’ proposal was adopted, the varied clause would then read:
‘52.3 Daily overtime will be compensated for in the following manner.
(a) Overtime will be paid for at the rate of time and a half for the first two hours and
double time after that.’
[27] The MEAA submission did not address the issue raised by the Television Networks.
[28] In these circumstances a further conference will be convened by Deputy President
Kovacic, to seek to resolve the remaining issue in contention.
3.3 Awards subject to further consideration
[29] In the 26 September Statement, interested parties were given an opportunity to file
submissions in respect of the insertion of the model TOIL term in the remaining three awards:
Journalists and Published Media Award 2010
Horticulture Award 2010
Pastoral Award 2010
[30] These awards were the subject of a hearing on 5 December 2016.
Journalists and Published Media Award 2010
[31] Nationwide News Pty Ltd, Bauer Media Pty Limited and Pacific Magazines Pty
Limited (the Media organisations) oppose the insertion of the model TOIL term in the
Journalists and Published Media Award 2010, on the basis that clause 22.3 of the award
currently provides that TOIL is the default position, rather than payment for overtime. The
MEAA supports the insertion of the model TOIL term.
[32] We note that clause 4.10(a) of the award provides that Part 5—Hours of Work and
Related Matters does not apply to employees employed in certain online publications (namely
those online publications not associated with a print publication). In the context of the Award
stage of the Review the MEAA is seeking to vary the coverage of the award – and in
particular to delete clause 4.10(a). The outcome of the MEAA’s application may affect the
coverage of the model TOIL term, were it to be inserted into the award.
[2016] FWCFB 7737
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[33] In these circumstances we have decided to defer further consideration of the variation
of the TOIL provisions in this award until after the MEAA’s coverage application has been
determined. At that time these proceedings will be relisted, for mention, to provide the
interested parties with an opportunity to be heard as to how the matter is to proceed. In the
meantime, Deputy President Kovacic will convene a conference of the interested parties with
a view to resolving, or at least narrowing, the contested issues in relation to the TOIL term.
Pastoral Award 2010 and Horticulture Award 2010
[34] As a result of a conference held on 5 December 2016, the AWU and National
Farmers’ Federation (NFF) have reached an agreed position in respect of the TOIL term to be
inserted into these awards. On 7 December 2016 the parties submitted agreed draft
determinations varying the Pastoral Award 2010 and Horticulture Award 2010 to insert a
modified version of the TOIL term. Draft determinations will be published by the
Commission shortly and all interested persons may send comments on the drafts to
amod@fwc.gov.au by 4.00 pm on Wednesday 25 January 2017.
4. Next steps
[35] The TOIL provisions in the Airport Employees Award 2010 and Live Performance
Award 2010 will be dealt with during the Award stage of the Review. The remaining 20
awards providing for TOIL at overtime rates identified at Attachment A will now be varied to
insert the model overtime rates TOIL term.
[36] Variation determinations will be issued in respect of the Clerks—Private Sector Award
2010; the Medical Practitioners Award 2010 and the Social, Community, Home Care and
Disability Services Award 2010, as set out at paragraph [20] above.
[37] A further conference will be convened in respect of the Broadcasting and Recorded
Entertainment Award 2010, to seek to resolve the remaining issue in contention.
[38] Further consideration of the variation of the TOIL provisions in the Journalists and
Published Media Award 2010 will be deferred until after the MEAA’s coverage application
has been determined, though as set out at paragraph [33] above a further conference will be
convened regarding the award with a view to resolving, or at least narrowing, the contested
issues in relation to the TOIL term.
[39] Draft variation determinations will be published in respect of the Pastoral Award 2010
and the Horticulture Award 2010, taking into account the agreed AWU/NFF position.
Interested persons may send comments on the drafts to amod@fwc.gov.au by 4.00 pm on
Wednesday 25 January 2017.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR586879
mailto:amod@fwc.gov.au
mailto:amod@fwc.gov.au
[2016] FWCFB 7737
8
1 [2016] FWCFB 4258.
2 [2016] FWCFB 4579.
3 [2016] FWCFB 6178.
4 [2016] FWCFB 6333
5 [2015] FWCFB 6847.
6 Ibid at paras [34]–[36].
7 Ibid at [36].
8 See for example clause 39.5(a) of the Textile, Clothing, Footwear and Associated Industries Award 2010.
9 The awards that currently provide for agreement in writing are shown in the table in Attachment A
10 [2016] FWCFB 6591.
11 Transcript – 12 September 2016 at para. 9.
12 Ibid at paras 10–52.
13 Ibid at paras 54–77.
14 [2016] FWCFB 6591.
15 [2016] FWCFB 6887.
16 We note that a submission by the ASU identified a typographical error in clause 28.3(f) of the draft variation determination
in respect of this award and that error will be corrected in the final determination.
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb6887.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb6591.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/120916-am2014300.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb6591.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB6847.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb6333.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB6178.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB4579.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB4258.htm
[2016] FWCFB 7737
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ATTACHMENT A—Modern awards with TOIL at overtime rates
21 awards with TOIL at overtime rates
Award code Award title
Agreement in
writing (see [7])
MA000049 Airport Employees Award 2010 1
MA000098 Ambulance and Patient Transport Industry Award 2010
MA000079 Architects Award 2010
MA000110 Corrections and Detention (Private Sector) Award 2010
MA000096 Dry Cleaning and Laundry Industry Award 2010
MA000088 Electrical Power Industry Award 2010
MA000003 Fast Food Industry Award 2010
MA000004 General Retail Industry Award 2010
MA000005 Hair and Beauty Industry Award 2010
MA000008 Horse and Greyhound Training Award 2010
MA000099 Labour Market Assistance Industry Award 2010
MA000117 Mannequins and Models Award 2010
MA000059 Meat Industry Award 2010
MA000034 Nurses Award 2010
MA000012 Pharmacy Industry Award 2010
MA000058 Registered and Licensed Clubs Award 2010
MA000119 Restaurant Industry Award 2010
MA000038 Road Transport and Distribution Award 2010
MA000082 Sporting Organisations Award 2010
MA000017 Textile, Clothing, Footwear and Associated Industries Award 2010
MA000071 Timber Industry Award 2010
NOTES:
1 The TOIL provision in this award will be dealt with during the Award stage
http://www.fwc.gov.au/documents/modern_awards/award/MA000071/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000017/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000082/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000038/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000119/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000058/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000012/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000034/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000059/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000117/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000099/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000008/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000005/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000004/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000003/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000088/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000096/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000110/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000079/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000098/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000049/default.htm
[2016] FWCFB 7737
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ATTACHMENT B—Model overtime rates TOIL term
T.OT Time off instead of payment for overtime
(a) An employee and employer may agree [in writing]1 to the employee taking time off
instead of being paid for a particular amount of overtime that has been worked by the
employee.
(b) The period of time off that an employee is entitled to take is equivalent to the overtime
payment that would have been made.
EXAMPLE: By making an agreement under clause T.OT an employee who worked
2 overtime hours at the rate of time and a half is entitled to 3 hours’ time off.
(c) Time off must be taken:
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee and
employer.
(d) If the employee requests at any time, to be paid for overtime covered by an agreement
under clause T.OT but not taken as time off, the employer must pay the employee for
the overtime, in the next pay period following the request, at the overtime rate
applicable to the overtime when worked.
(e) If time off for overtime that has been worked is not taken within the period of
6 months mentioned in paragraph (c), the employer must pay the employee for the
overtime, in the next pay period following those 6 months, at the overtime rate
applicable to the overtime when worked.
(f) An employer must not exert undue influence or undue pressure on an employee in
relation to a decision by the employee to make, or not make, an agreement to take time
off instead of payment for overtime.
(g) An employee may, under section 65 of the Act, request to take time off, at a time or
times specified in the request or to be subsequently agreed by the employer and the
employee, instead of being paid for overtime worked by the employee. If the
employer agrees to the request then clause T.OT will apply for overtime that has been
worked.
Note: If an employee makes a request under section 65 of the Act for a change in
working arrangements, the employer may only refuse that request on reasonable
business grounds (see section 65(5) of the Act).
(h) If, on the termination of the employee’s employment, time off for overtime worked by
the employee to which clause T.OT applies has not been taken, the employer must pay
the employee for the overtime at the overtime rate applicable to the overtime when
worked.
Note: Under section 345(1) of the Act, a person must not knowingly or recklessly
make a false or misleading representation about the workplace rights of another person
under clause T.OT.
1 The requirement to make an agreement ‘in writing’ has been retained in awards where this is a
current award condition
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ATTACHMENT C—Model overtime rates TOIL term – changes to July 2016
model TOIL term tracked
T.T Time off instead of payment for overtime
(a) An employee and employer may agree in writing to the employee taking time
off instead of being paid for a particular amount of overtime that has been
worked by the employee.
(b) Any amount of overtime that has been worked by an employee in a particular
pay period and that is to be taken as time off instead of the employee being
paid for it must be the subject of a separate agreement under clause T.T.
(c) An agreement must state each of the following:
(i) the number of overtime hours to which it applies and when those hours
were worked;
(ii) that the employer and employee agree that the employee may take time
off instead of being paid for the overtime;
(iii) that, if the employee requests at any time, the employer must pay the
employee, for overtime covered by the agreement but not taken as time
off, at the overtime rate applicable to the overtime when worked;
(iv) that any payment mentioned in subparagraph (iii) must be made in the
next pay period following the request.
Note: An example of the type of agreement required by this clause is set out at
Schedule I. There is no requirement to use the form of agreement set out at
Schedule I. An agreement under clause T.T can also be made by an exchange
of emails between the employee and employer, or by other electronic means.
(d) The period of time off that an employee is entitled to take is the same as the
number of overtime hours worked equivalent to the overtime payment that
would have been made.
EXAMPLE: By making an agreement under clause T.T an employee who
worked 2 overtime hours at the rate of time and a half is entitled to 2 3 hours’
time off off.
(e) Time off must be taken:
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee
and employer.
(f) If the employee requests at any time, to be paid for overtime covered by an
agreement under clause T.T but not taken as time off, the employer must pay
the employee for the overtime, in the next pay period following the request, at
the overtime rate applicable to the overtime when worked.
[2016] FWCFB 7737
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(g) If time off for overtime that has been worked is not taken within the period of 6
months mentioned in paragraph (e), the employer must pay the employee for
the overtime, in the next pay period following those 6 months, at the overtime
rate applicable to the overtime when worked.
(h) The employer must keep a copy of any agreement under clause T.T as an
employee record.
(i) An employer must not exert undue influence or undue pressure on an employee
in relation to a decision by the employee to make, or not make, an agreement to
take time off instead of payment for overtime.
(j) An employee may, under section 65 of the Act, request to take time off, at a
time or times specified in the request or to be subsequently agreed by the
employer and the employee, instead of being paid for overtime worked by the
employee. If the employer agrees to the request then clause T.T will apply,
including the requirement for separate written agreements under paragraph (b)
for overtime that has been worked.
Note: If an employee makes a request under section 65 of the Act for a change
in working arrangements, the employer may only refuse that request on
reasonable business grounds (see section 65(5) of the Act).
(k) If, on the termination of the employee’s employment, time off for overtime
worked by the employee to which clause T.T applies has not been taken, the
employer must pay the employee for the overtime at the overtime rate
applicable to the overtime when worked.
Note: Under section 345(1) of the Act, a person must not knowingly or recklessly
make a false or misleading representation about the workplace rights of another
person under clause T.T.
2. By inserting Schedule I as follows:
Schedule I—Agreement for time off instead of payment for overtime
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree that the employee may take time off instead of being
paid for the following amount of overtime that has been worked by the employee:
Date and time overtime started: ___/___/20___ ____ am/pm
Date and time overtime ended: ___/___/20___ ____ am/pm
Amount of overtime worked: _______ hours and ______ minutes
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The employer and employee further agree that, if requested by the employee at any
time, the employer must pay the employee for overtime covered by this agreement but
not taken as time off. Payment must be made at the overtime rate applying to the
overtime when worked and must be made in the next pay period following the request.
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
